Boruch, pro se, filed a Wis. Stat. § 974.06 motion raising a slew of claims related to his conviction, at jury trial, for first-degree intentional homicide. He’d already had an 809.30 postconviction motion and direct appeal (with counsel). He claimed, as a “sufficient reason” for not raising these new claims the first time around, that his postconviction/appellate counsel had been ineffective. The circuit court denied the motion and also refused to waive fees to produce the transcripts Boruch would need to appeal this denial. This is an appeal only of the refusal to waive those fees.Actually, it’s the second appeal. In the first one, the court of appeals summarily reversed the trial court because “it did not appear the circuit court made the findings required under [State ex rel. Girouard v. Circuit Court for Jackson Cty., 155 Wis. 2d 148, 151, 454 N.W.2d 792 (1990)]”. The case went back to the circuit court so it could make those findings, which the court of appeals itself described as whether Boruch (whom all agree is indigent) had presented claims with “arguable merit” such that he was entitled to a fee waiver. The trial court indeed determined that there was no arguable merit to Boruch’s claims, and accordingly declined to waive the fees.
Now the court of appeals says that it was wrong about the test: it’s actually whether Boruch has stated “a claim upon which relief may be granted.” This is because Wis. Stat. § 814.29(1)(c), the statute on which Girouard relied, was later amended with this new language. It’s not clear from the opinion what the difference between these two tests might be: can a motion be arguably meritorious but not state a claim on which relief could be granted? Or can it state a claim on which relief could be granted, but not be arguably meritorious? But, no matter, says the court of appeals: Boruch loses either way.
The reason he loses: the dubious “rule” that a claim of ineffective assistance of counsel requires a showing that the issue the defendant says should have been presented is “clearly stronger” than the issues counsel actually raised. The court of appeals says Boruch can’t show this, but even accepting the constitutional validity of the rule, its reasoning is remarkably shaky.
The court says Boruch didn’t make more than a “cursory assertion” that his new issues are clearly stronger than the one his lawyer raised. But it then elaborates that Boruch “merely explained why he believed each of his new claims had merit” and also pointed out that the court of appeals, back in his first appeal, said it would be “unreasonable in the exteme” to conclude the old claim was not harmless error. How does the court of appeals expect a litigant to show one claim to be clearly stronger than another, other than by showing that one is meritorious and the other is “unreasonable in the extreme”? Seems like the best way, and maybe the only way, of comparing the strength of claims, no? The language of Walker v. Pollard, the same federal habeas case linked above, springs to mind:
[B]oth the trial court and the court of appeals had all the information they needed to meaningfully assess [the] allegation that the juror issue was clearly stronger than the issues raised by postconviction counsel. Each court could have compared the juror issue to the issues raised and then answered the legal question of whether the juror issue was clearly stronger. Accordingly, the courts’ conclusions that Walker was required to provide them with some other “support” for his allegation that the juror issue was clearly stronger than the issues raised was unexpected and freakish.
The court of appeals goes on to say that their “unreasonable in the extreme” quote was only about whether the original error asserted was harmless, not whether it was an error. Thus, it says, “our statement had no bearing on the actual performance of Boruch’s counsel in raising the alleged issue of error that she did.” (¶29). This makes no sense. Can an issue that is obviously, inarguably harmless also be “strong?” Is it really the case that a lawyer’s decision to raise an issue that’s clearly harmless, and thus dead on arrival, “has no bearing” on the reasonableness of his or her performance?
The court’s other reasons are even less persuasive. It says Boruch favorably cited some of his prior attorney’s arguments (who cares?) and that he didn’t explain why she chose to raise the issues that she did (how would he know)? (¶30-31). All in all, and regardless of the merits of Boruch’s claims, it’s a shame to see the court of appeals deploying such specious arguments to deny a pro se, indigent prisoner the right to an appeal.